Category: Haiti

Categories
All Countries Haiti

2020 RLLR 90

Citation: 2020 RLLR 90
Tribunal: Refugee Protection Division
Date of Decision: June 23, 2020
Panel: Reisa Khalifa
Counsel for the Claimant(s): Luciano Mascara
Country: Haiti
RPD Number: MB7-17566
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000009-000019

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division in the claim for refugee protection of [XXX] (the Claimant), citizen of Haiti. He is seeking asylum under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

DECISION

[2]       The Panel concludes that the Claimant has established that he faces a serious possibility of persecution in Haiti, on the basis of his membership in a particular social group, namely Haitian men who are HIV-positive.

[3]       The Panel therefore finds that he is a “Convention refugee” pursuant to section 96 of the IRPA and accepts his claim.

SUMMARY OF ALLEGATIONS

[4]       The Claimant’s detailed allegations are contained in his Basis of Claim form (BOC).[1]

[5]       In summary, the Claimant fears for his life if he were to return to Haiti, as he is HIV- positive and the legal and socio-cultural environment of Haiti is hostile and even violent towards individuals with HIV, such that they may be attacked or discriminated against, may be denied medicine, food and shelter, and will not receive police protection.

[6]       The Claimant left Haiti around 1999 due to threats against him related to a family dispute and threats from his girlfriend’s brother, and went to the Dominican Republic, where he remained for 12 years under temporary residence visas that he kept renewing.

[7]       He then met an American woman of Haitian origin and they married, before moving to the United States (U.S.) together in [XXX] 2012. The Claimant had the status of a conditional resident of the U.S., which was based on his marriage to a U.S. citizen. This status allowed him to receive a U.S. permanent resident card in [XXX] 2012 that was valid until [XXX] 2014.

[8]       The relationship deteriorated, as the Claimant alleges that he was the victim of abuse by his wife and her adult son. His wife kicked him out of the house, and he found himself homeless.

[9]       In 2014, the Claimant became ill and went to a hospital, where he was diagnosed with HIV.

[10]     The Claimant applied for the renewal of his U.S. conditional resident status on its expiry. He then applied to remove the conditions of his residential status in 2016, by submitting various documentation to the U.S. authorities in an attempt to demonstrate that he had been in a good-faith marriage that had ended due to abuse, including a personal statement to explain his situation, a police report regarding an incident with his wife’s son, a letter from a [XXX], three affidavits in support of his application, and the marriage certificate.

[11]     The Claimant received a notice in [XXX] 2017 from the U.S. authorities that required him to submit additional documentation in support of his application, including proof of children of the marriage, proof that he and his wife had a common residence, a joint bank account statement with his wife and any joint financial planning arrangements. As the Claimant had no children with his wife, had been kicked out of the house, was in fact homeless and did not have a joint bank account with his wife, he had no additional documentation to provide.

[12]     The notice informed the Claimant that he must provide the additional documentation by [XXX] 2017 and that if he failed to do so, his application could be denied. As the Claimant did not believe that he could obtain any further documentation to satisfy the request, fearing deportation, he left for Canada in [XXX] 2017.

[13]     The Claimant claimed asylum here in [XXX] 2017.

ANALYSIS

Identity

[14]     The personal and national identity of the Claimant is established, on a balance of probabilities, by the documentary evidence on file, specifically his Haitian passport[2].

Exclusion 1E: Status in the United States

Intervention by Minister

[15]     The Minister of Immigration, Refugees and Citizenship Canada (the Minister) intervened in writing and in person at the hearing, regarding a possible exclusion under section 1E of the Convention[3].

[16]     The Minister submitted that the Claimant should be excluded under section 1E due to his conditional resident status in the U.S., which they submit is a status with rights similar to that of nationals in the U.S., because he had left the country before receiving a confirmation as to whether or not that status had been revoked, after having taken appropriate action to remove the conditions associated with his conditional resident status.

[17]     The Minister’s position is that because the Claimant did not wait to receive a conclusive response regarding his status and did not return to the U.S., he should be considered to have voluntarily abandoned his conditional resident status in the U.S.

[18]     The Minister also submitted that the Claimant showed an absence of subjective fear that undermined his credibility, due to his decision to leave the U.S. and not return.

Status of the Claimant in the United States

[19]     The Claimant lived in the U.S. from [XXX] 2012 to [XXX] 2017. He was granted conditional resident status there in [XXX] 2012, which had been set to expire in 2014, but was then renewed and extended in [XXX] 2016 for another year.

[20]     According to the national documentation package for the United States, conditional residents have the right to work without restrictions, to study, to access social services, to leave and return without requiring a visa.[4] This information was also reflected in the exhibits of the Minister relevant to this issue.[5]

[21]     The Panel finds that the Claimant, as a conditional resident in the U.S., had rights that were substantially similar to those of nationals of that country.

Claimant’s Lass of Status in the United States

[22]     The Claimant’s conditional resident status had been extended until [XXX] 2017,[6] prior to him receiving a notice in [XXX] 2017.[7]

[23]     The [XXX] 2017 notice indicated to the Claimant that if he did not provide additional documentation in support of his application to remove the conditional status of his residence, his “case may be denied.”

[24]     The Claimant left the U.S. in [XXX] 2017.

[25]     Conditional residents who travel abroad for an extended period of time may apply for a re- entry permit prior to leaving the United States, which the Claimant did not do.

[26]     Conditional residents who fail to apply for a re-entry permit and who have lived outside the U.S. for more than two years may apply for a returning visa outside the country, but are not guaranteed admission into the U.S.

[27]     Given that the Claimant had left the country in [XXX] 2017 and given that his conditional resident status had only been extended to [XXX] 2017; given that the Claimant had applied to remove the conditions of his status, but had been told to provide further documentation that he then did not provide, failure to do so was advised that his application could be denied; given that the Claimant did not apply for a re-entry permit before leaving the U.S.; given that the Claimant did not apply for a re-entry permit after leaving the U.S., and more than two years have passed; the Panel finds that, on the balance of probabilities, the Claimant had lost his conditional resident status on the day of the hearing.

Zeng Analysis

[28]     The Panel must therefore examine the factors set out in Zeng[8], and consider the reason for the Claimant’s loss of status (voluntary or involuntary) in the United States; whether he could return to the country, the risk that he would face in his home country of Haiti, Canada’s international obligations, and any other relevant facts.

[29]     The Claimant alleges that he left the U.S. after trying to stabilize his status there, by submitting an application and supporting documentation in order to remove the conditions of his residence there.

[30]     The Claimant had submitted the following documents in support of his application: a personal statement; a police report; psychotherapy and counselling letters; three affidavits; a document indicating his residence; a budget letter; medical records; photographs; and his marriage certificate.

[31]     The Panel considers that the efforts put in by the Claimant to regularize his status in the

U.S. by renewing his conditional resident status, then by applying to remove the conditions on his residence, were reasonable. He prepared the necessary paperwork and provided numerous documents in support of his application.

[32]     The Panel considers that the decision of the Claimant to leave the United States, in the face of being advised that his application could be refused for not providing additional documentation, was reasonable due to his inability to provide the additional documentation requested by the authorities: he and his wife did not have children, so he could not provide any documents in that regard; he had been kicked out of the matrimonial home and did not have any documents that indicated his name was associated with the matrimonial home, as he had testified that the home was leased in his wife’s name; the Claimant did not have a joint bank account with the wife; and finally, the Claimant and his estranged wife had not made any joint financial arrangements.

[33]     It is therefore entirely reasonable that the Claimant would consider that he did not have the required documentation in order to finalize his claim for status in the U.S. The Panel finds that his decision to leave was based on his understanding that, on the balance of probabilities, his claim would be denied due to a failure to provide the additional documents. His failure to apply to re­ enter the U.S. is also found to be reasonable when looking at the facts through this spectre.

[34]     The Panel finds that the departure of the Claimant can therefore be deemed involuntary, as he believed that his failure to provide further documentation to the U.S. authorities would lead to his status being denied and his deportation back to Haiti. The Panel finds that in the context that the Claimant believed himself, on the balance of probabilities, to face deportation from the U.S. for the reasons just described, it is reasonable to believe that the Claimant believed that he had no choice but to leave.

[35]     The Panel finds that the Claimant is credible with respect to his allegations of fear of return to Haiti as an individual who is HIV-positive. The Claimant’s testimony regarding his reaction to finding out that he had HIV and his resulting alienation from family members in Haiti, including his sister who stopped talking to him after learning that he was HIV-positive, was credible and consistent with the socio-cultural environment in Haiti for HIV-positive individuals, as indicated in the national documentation package for Haiti.

[36]     When considering Canada’s international obligations, the Panel finds that the Claimant would face the serious possibility of persecution in Haiti based on his HIV status, as discussed more fully below, and that this engenders refugee protection.

[37]     The Panel therefore considers that Canada would be respecting its international obligations under the Convention by granting the Claimant asylum due to his credible allegations regarding his loss of status in the U.S. and his fear of return to Haiti.

Conclusion regarding Exclusion

[38]     The Panel therefore concludes that the Claimant is not excluded under section 1E of the

Convention.

Nexus to the Convention

[39]     The allegations of the Claimant establish a nexus to the Convention. He faces persecution based on his membership in a particular social group, which is HIV-positive Haitian men.

[40]     His claim, therefore, has been analyzed pursuant to section 96 of the IRPA.

Credibility

[41]     The Panel will only discuss the Claimant’s credibility with respect to his allegations regarding his HIV status, as this status is sufficient to meet the requirements of the IRPA. It is therefore not necessary to analyze the other allegations for the purpose of his claim.

[42]     The Panel finds that the Claimant is credible for the following reasons:

[43]     Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness.[9] In this claim, the Panel has no such reason.

[44]     The Claimant provided detailed testimony regarding the circumstances under which he discovered himself to be HIV-positive, as well as producing documentary evidence.[10] He also testified in a straightforward fashion about the impact this status had on his relationship with his family members in Haiti, as well as the treatment that he would expect should he return to Haiti, including violence, due to widespread cultural prejudices against those with HIV.

[45]     The national documentation corroborates the testimony of the Claimant. One source indicates that there are “well-documented cases of people living with HIV/AIDS who experience stigma and discrimination and who are denied services because of their HIV status in the workplace, in education and health care, and even in communities where there are people living with HIV”.[11] Furthermore, the objective documentary evidence indicates that the rights of those with HIV are violated in other areas as well, including with respect to non-discrimination, housing, care, social security, assistance and well-being.[12]

[46]     The country conditions are such that there is no legal protection in Haiti against discrimination based on HIV-positive status.[13]

[47]     Prejudice against people living with HIV is prevalent in Haiti, as indicated by a 2012 survey that indicates 57.7 percent of adults would not buy vegetables from a shopkeeper or vendor if they knew that the person had HIV.[14] 61 percent of women and 55 percent of men reported discriminatory attitudes towards people living with HIV.[15]

[48]     The attitudes and treatment of people in Haiti living with HIV are connected to the overall prejudice in that country against those perceived to be homosexual, which is why those who seek treatment for HIV also face the danger of violence based on that perception of their sexual orientation: “even the mere suspicion of homosexuality may trigger violence”.[16]

[49]     Furthermore, beyond the absence of a law that prohibits discrimination against those with HIV, there is a lack of police protection for those perceived to be engaging in same-sex acts: “Haitian authorities do not generally respond when faced with violent acts against individuals who are sexual minorities.”[17]

[50]     The objective documentary evidence indicates at length that anyone perceived as homosexual faces violence not only by other civilians but by police as well.[18] The country conditions are replete with examples of people who seek police protection in Haiti for acts directed at them because of their perceived sexual orientation and are often ridiculed by police, who may either refuse to file a report or may even further victimize and humiliate them, including with physical assaults.[19]

[51]     The country evidence therefore demonstrates that the Claimant faces a serious possibility of persecution in Haiti, based on his membership in a particular social group, specifically HIV­ positive Haitian men.

[52]     For all of these reasons, the Panel finds that the Claimant’s allegations are credible.

[53]     The Panel, therefore, finds that the Claimant has established, on a balance of probabilities, that he faces the serious possibility of persecution if he returns to Haiti, based on his membership in a particular social group, that of HIV-positive Haitian men. The Panel finds that the Claimant has established, on a balance of probabilities, that he is HIV-positive, which he discovered when he went to a hospital in the U.S. after falling ill in 2014.

[54]     The Panel concludes that the Claimant faces a forward-looking serious possibility of persecution based on the aforementioned findings.

State Protection

[55]     Considering the evidence previously stated that discrimination against people with HIV is not legally prohibited in Haiti, in addition to the objective documentary evidence as discussed regarding the tendency of the police to tum a blind eye to violence against those perceived to be a sexual minority in Haiti, or even sometimes themselves be the perpetrators of violence against those perceived to be a sexual minority in Haiti, the Panel finds that state protection would not be available to the Claimant, if he were to approach the state for protection.

[56]     The Panel concludes that the Claimant has provided clear and convincing evidence that has rebutted the presumption of adequate state protection.

Internal flight alternative

[57]     The Panel finds that the Claimant faces a serious possibility of persecution throughout Haiti.

[58]     The country evidence before the Panel is that violent and hostile attitudes towards HIV­ positive individuals are prevalent throughout the country. The Panel finds that there is nowhere in Haiti the Claimant could relocate that would be safe and reasonable, due to his HIV status.

[59]     There is, therefore, no viable internal flight alternative for the Claimant anywhere in Haiti.

CONCLUSION

[60]     For all of these reasons, the Panel finds that the Claimant has established a subjective fear of return to Haiti that is objectively well-founded.

[61]     The Panel concludes that the Claimant has established that he faces a serious possibility of persecution in Haiti in accordance with section 96 of the IRPA.

[62]     The Panel, therefore, finds that he is a “Convention refugee” pursuant to section 96 of the IRPA and accepts his claim.

[1] Document 2 — Basis of Claim Form (BOC).

[2] Document 1 — Package of information from the referring Canada Border Services Agency (CBSA) or Immigration, Refugees and Citizenship Canada (IRCC): Passport.

[3] Document 6 — Minister’s Notice of Intervention and Exhibits M-1 to M-6.

[4] Document 5 — National Documentation Package, United States, 31 January 2020 (NDP USA), tab 3.2: The Immigrant Visa Process, United States, Department of State;

Document 5 — NDP USA, tab 3.4: Report on Citizenship Law: United States of America, European University Institute, European University Democracy Observatory on Citizenship, Peter J. Spiro, July 2015.

[5] Document 6 — Exhibits M-3, M-4 and M-5.

[6] Document 7 — Exhibit D-2.

[7] Ibid.

[8] Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118.

[9] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).

[10] Document 8 — Exhibit D-4.

[11] Document 3 — National Documentation Package, Haiti, 30 September 2019 (NDP Haiti), tab 1.12: Response to Information Request, HTI106236.FE, Immigration and Refugee Board of Canada, 4 March 2019.

[12] Supra, note 11.

[13] Document 3 — NDP Haiti, tab 2.1: Haiti. Country Reports on Human Rights Practices for 2018, United States, Department of State, 13 March 2019;
Document 3 — NDP Haiti, tab 2.3: Report of the Independent Expert on the situation of human rights in Haiti, United Nations, Human Rights Council, 8 March 2017.

[14] Supra, note 11.

[15] Ibid.

[16] Document 3 — NDP Haiti, tab 14.1: Response to Information Request, HTI106204.FE, Immigration and Refugee Board of Canada, 29 November 2018.

[17] Ibid.

[18] Document 3 — NDP Haiti, tab 6.1: Response to Information Request, HTl104591.FE, Immigration and Refugee Board of Canada, 27 September 2013;
Document 3 — NDP Haiti, tab 6.2: Fighting for our Lives: Violence and Discrimination against Women and LGBT Persons in Haiti, ANAPFEH et al, October 2014;

Document 3 — NDP Haiti, tab 6.3: Supplementary information on Haiti regarding the treatment of lesbian, bisexual and transgender (LBT) persons and violence against women’s human rights defenders, FACSDIS et al, 12 June 2015;

Document 3 — NDP Haiti, tab 6.4: Haiti : La situation des minorités sexuelles et de genre, France, Office

français de protection des réfugiés et apatrides, 10 May 2016.

[19] Ibid.

Categories
All Countries Haiti

2020 RLLR 61

Citation: 2020 RLLR 61
Tribunal: Refugee Protection Division
Date of Decision: November 26, 2020
Panel: R. Jackson
Counsel for the Claimant(s): Tina Hlimi
Country: Haiti
RPD Number: TB8-25759
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000008-000010

DECISION

[1]       MEMBER: So, I am just going to read you your Decision now. It is a positive decision. So, if everybody could just mute their microphone, I am going to read it to you, okay?

[2]       I have considered your testimony and the other evidence in the case, and I am ready to render my Decision orally. These are the reasons for the Decision in the claim of [XXX], who claims to be a Citizen of Haiti and is claiming refugee protection pursuant to 96 and 97(1) of the Immigration and Refugee Protection Act or IRPA or the Act.

[3]       You alleged that in your role in the [XXX] you made some enemies. There were two individuals who were for revenge upon you. One of them wishes to personally harm you, and the other has hired a gang to kill you. You fear you will be killed should you return to Haiti. I find on a balance of probabilities that you would be subjected personally to a risk to your life should you return to Haiti for the following reasons:

[4]       I find that your identity as the national of Haiti is established by the documents provided, including copies of your passport and birth certificate.

[5]       To establish your status as a Convention Refugee or as a person in need of protection, you had to show that there was a serious possibility that you will be persecuted or that you will be subjected on a balance of probabilities to a risk to life or of cruel and unusual treatment or punishment or danger of torture if you move to Haiti. You stated that you fear being killed because of the vendetta that (inaudible spot – 00:02:12) have against you because of (inaudible spot – 00:02:15) arrest and suspension among other matters of internal church politics.

[6]       Refugee protection claims involving vendettas usually follow under subsection 97(1) of the Act, and since there is no nexus that I can mention. I therefore analyzed your Refugee Protection Claim under Section 97(1)(b) of the Act, and that is whether you would be personally subjected to a risk to your life or a cruel and unusual treatment or punishment should you return to Haiti.

[7]       I find that the evidence presented in support of your allegations does establish a likelihood on a balance of probabilities of a risk to your life. I find you to be a credible witness and therefore believe what you have alleged in support of your claim.   You testified in a straightforward manner, and you were able to spontaneously provide consistent testimony, as well as details of the many events in your narrative. You also provided evidence from credible sources which corroborates your allegations regarding what happened to you in Haiti. Your claim was very well documented. There is objective support for your allegations. Item 7.1 of the National Documentation Package describes the security situation in Haiti as bad, worrisome, precarious and unpredictable. Organized crime exists throughout the country, and there is a high level of crime and murder, kidnappings for ransom money or (inaudible spot – 00:03:44). Violent crime is primarily perpetrated by gangs in Haiti as well.  I find that there is clear and convincing evidence before me that the state is unable to provide you with adequate protection. Section 4.2 of the National Documentation Package states that democracy is precarious in the country. 2.1 states that the perception of widespread impunity discourages some witnesses from testifying at trials. These factors will impact your ability to receive any protection from the state. Item 7.1 states that the police force does not have sufficient capacity to carry out its missions, on the other hands it is also reported that the forces demonstrated an increased capacity in the planning and execution of complex operations including the securing of elections and crowd control while simultaneously performing routine tasks in combatting crime and more effectively maintaining the public order. Nevertheless, sources report that Haiti’s police force is too small given the crime rate.

[8]       Sources also reports that the police force lacks resources and means and doubts have repeatedly been raised as to whether the National Police Force is able to guarantee the security needed to protect Citizens, enforce the law and promote political stability.  Haiti’s judicial system is also under resourced and inefficient and is burdened by a large backlog of cases. Bribery is common at all levels of the judicial system. So, taking all of that into consideration I do not find that there is going to be a reasonable state protection for you and there is prior convincing evidence that the state is unable to provide you with adequate protection in your particular circumstances from the people who are after you.

[9]       I have considered whether a viable Internal Flight Alternative exists for you, and I find that there are no other parts of the country where you would not face a risk to your life. Haiti is a very small country, and you have been located more than once when you attempted to relocate within the country.

[10]     Based on this analysis, I conclude that you are a person in need of protection, and accordingly I accept your claim.

[11]     So that is the end of your hearing. Do you have any questions?

[12]     You have to unmute if you have a question.

[13]     CLAIMANT: I don’t have question.

[14]     MEMBER: Okay.  Well that’s it then.

[15]     COUNSEL: Okay. Thank you.

[16]     MEMBER: Thanks everybody. Thank you, Mr. Interpreter.

[17]     INTERPRETER: Okay. Thank you, Madam Member.

———- REASONS CONCLUDED ———-

Categories
All Countries Haiti

2020 RLLR 51

Citation: 2020 RLLR 51
Tribunal: Refugee Protection Division
Date of Decision: October 19, 2020
Panel: Miryam Molgat
Counsel for the Claimant(s): Milan Milenkovic
Country: Haiti
RPD Number: VB9-06803
ATIP Number: A-2021-00655
ATIP Pages: 000139-000148

REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claim of [XXX] (the claimant). The claimant claims to be a citizen of Haiti and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

DETERMINATION

[2]       Having considered all of the evidence, the panel determines that, on a balance of probabilities, the claimant would face a risk to life or a risk of cruel and unusual treatment or punishment in Haiti.

[3]       Its reasons are as follows:

ALLEGATIONS

[4]       The claimant’s complete allegations are set out in the Basis of Claim Form (BOC)2 and need not be repeated here in detail.

[5]       To summarize briefly, the claimant was targeted by organized crime after refusing to give up his XXXX to the members of this organized crime group. The claimant was employed by [XXX] in Haiti. He was employed as a [XXX] (in Port­au-Prince), a dangerous area overrun by bandits. He testified that his work involved [XXX]

[6]       On [XXX] 2019, while working, the claimant was approached by a stranger. The man asked him to give him his [XXX]. The claimant refused, explaining the procedure involved in handing over an [XXX]. The stranger became furious and threatened him. Strangers started asking the security guards at work about the claimant.

[7]       On [XXX] 2019, while at the [XXX], the claimant was called out by an individual who took an interest in his [XXX]. This person knew when the claimant’s work shift ended, and the name of the person assigned to the following shift. Out of fear, the claimant remained at the [XXX] for several hours after his shift ended, until he felt it was less risky to leave the [XXX].

[8]       After this incident, the claimant took precautions in his means of transportation to work. Eventually, the situation became too stressful and the claimant quit his job on [XXX] 2019. He did so as he thought that quitting the job would put an end to his troubles.

[9]       On [XXX] 2019, while exiting [XXX], two persons gestured for him to stop his car. These persons shot in the direction of the car. The claimant sought state protection from the police in [XXX] on [XXX] 2019, to no avail. He does not know if the police investigated his complaint. The claimant moved to be away from his wife and daughter. He did this to keep them safe. Despite his move, on [XXX] 2019 a car chased him at high speed on the [XXX] highway. The car went out of its way to reach him. The claimant left Haiti on [XXX] 2019 on a plane ticket paid for by his sister. He landed in [XXX] USA, and made his way to Canada. His claim was referred at the Port of Entry on Aug 29, 2019.

[10]     The claimant fears being killed by the bandits who tried to kill him on [XXX] 2019 and [XXX] 2019.

[11]     The claimant also alleges risk to his life, risk of torture or risk of cruel and unusual treatment or punishment at the hands of the same agent of harm

[12]     The claimant alleges that neither state protection nor safe and reasonable internal flight alternatives are available in his country of nationality.

ANALYSIS:

[13]     The main issue is internal flight alternative (“IFA”).

Identity

[14]     The claimant’s national identity has been established by the testimony and supporting documentation filed and entered in these proceedings. The current passport is on file, along with other documents. The panel is satisfied of the claimant’s identity.

Nexus

[15]     For the claimant to be a Convention refugee, the fear of persecution must be “by reason of’ one of the five grounds enumerated in the Convention refugee definition. In other words, the claimant must have a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.

[16]     There are numerous Federal Court cases which have held that victims of crime, corruption[1], or vendettas[2] generally fail to establish a link between their fear of persecution and one of the five grounds in the definition of Convention refugee.

[17]     The panel finds that the harm feared by the claimant is not by reason of one of the five grounds enumerated in the Convention refugee definition. The panel finds that the allegations concern criminal acts perpetrated against the claimant for reasons not related to a nexus. The panel shall therefore analyse the claim under section 97(1).

Credibility

[18]     When credibility is assessed there are two principles that are followed. Firstly, when a claimant swears to the truthfulness of certain facts3 there is a presumption that what he is saying is true unless there is reason to doubt it. Secondly, when assessing credibility the panel is entitled to rely on rationality and common sense4. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.

[19]     The claimant’s allegations do not run contrary to generally known facts. The claimant was interviewed by CBSA at the border5. The claimant’s statements during the interview are consistent with his BOC allegations. In fact, they provide detail which adds to the credibility of the allegations. This adds to the credibility of the claimant as a witness. The claimant’s testimony at the hearing was consistent with his allegations. The testimony was spontaneous and direct. He has documented his allegations. The claimant is credible.

S. 97 ANALYSIS

[20]     Section 97 is based on an objective assessment of risk, and the evidence must establish a specific, individualized risk for a claimant rather than generalized human rights violations in a country. Being a victim of crime does not make someone automatically qualify under section 97. There must be evidence establishing, on the balance of probabilities, that the claimant would be subjected personally to a danger of torture, a risk to life or a risk of cruel and unusual treatment or punishment. In addition, to succeed under s. 97(1)(b), the claimant must also establish that the risk they face is not faced generally by others in or from the country.

[21]     The panel finds that the claimant would be subjected personally to a risk to life, or risk of cruel and unusual treatment or punishment in Haiti because of criminals’ interest in getting back at him since his refusal to give them his [XXX] in [XXX] 2019. The panel further finds that the claimant’s risk is not faced generally by others in or from Haiti.

[22]     The claimant does not name the criminals who have targeted him. But these criminals’ continued threats against him would, the panel finds, reasonably point to one same group of criminals who are targeting him. On a balance of probabilities, the panel accepts that the threats were by the same group of criminals targeting the claimant. This is because the claimant was specifically targeted by people who knew his identity, his schedule and his whereabouts. These criminals tracked and targeted him by threatening and attacking him, trying to shoot at him and run him off the road. This targeting carried over during various months and in various locations. There is no evidence that the claimant had any other problems with criminals in Haiti. People in Haiti are susceptible to crime and violence, but the claimant in this case the evidence establishes that the claimant was individually and specifically targeted by the same group of criminals.

[23]     Moreover, the events described go well beyond the general situation of gang crime or organised crime that is prevalent in Haiti. Even after the claimant quit his job as an [XXX] at the [XXX] in [XXX] 2019, he continued to be targeted, notably outside of [XXX], while on the road to [XXX] This was after he moved from his home in [XXX] 2019. This is relevant as he no longer had access to the [XXX] which was the starting point for the criminals’ interest in him in [XXX] 2019. The risk shifted to the claimant independently of whether his employment makes him of interest to the criminals. The risk has also now shifted independently of whether the claimant works in the area where he was first threatened. It is a risk that is more significant and more direct than that faced by others in Haiti.

[24]     In sum, the panel finds on a balance of probabilities that the claimant would be subjected personally to a risk to life or risk of cruel and unusual treatment or punishment in Haiti that is not faced generally by others in or from Haiti.

[25]     The risk he faces started as a risk resulting from his employment as a [XXX] for [XXX] at the [XXX]. That risk has now evolved to a specific, individualized risk that is unrelated to his employment as the risk is about him alone. That risk is not faced generally by large segments of the population in Haiti.

Similarly situated persons and objective basis

[26]     The objective country conditions evidence contains various documents on the harm faced by someone who has an unsettled score with gangs or other criminal elements6. The Board’s Response to Information Request (RIR) on Acts of Revenge committed by gangs or by other organized crime entities7 provides relevant information on the objective basis of this claim. Several sources in this RIR state that gangs and armed groups commit acts of revenge in Haiti. These acts of revenge are described as one of the methods of control used by gang leaders. Independently of their connection to gangs, criminals reportedly also commit acts of revenge. The perpetrators of acts of revenge may be guns for hire who work for others. Given the number of sources cited in this RIR, the panel gives this information significant weight. The information it provides is in conformity with other documents on file on the country conditions in Haiti.

[27]     Having established the prevalence of acts of revenge committed in Haiti by a variety of actors, the panel turns to the question of the motive for these acts of revenge. They are described, still in this same RIR, as occurring for a variety of reasons. Among these reasons is wanting to punish or dissuade those who oppose armed groups, and to settle scores. According to one source, those who report criminals to the police are particularly targeted. The panel notes that the claimant did file a police report. Acts of revenge are generally described as including murder and other grievous acts.

[28]     As for the ability to track down victims, the principal means described in the same RIR is word of mouth. The RIR refers to the effectiveness of different ways of locating people in Haiti. In addition, it reports that anyone outside a one’s small area will be quickly recognised. People in Haiti are reportedly “generally well aware of their neighbours’ business”8. The ability to track someone reportedly persists for years when a gang remains interested in that person. Some victims of acts of revenge have reported that the police helped assailants locate them.

[29]     Based on all of the stated evidence, the panel finds that there is an objective basis to the claim.

State Protection:

[30]     Claimants must show, on a balance of probabilities, that adequate State Protection is not available. The issue before the panel was whether it was objectively unreasonable for the claimant(s) to have sought state protection. While states are presumed to be capable of protecting their nationals, it was open to the claimant(s), according to the law, to rebut the presumption of protection with “clear and convincing” evidence.

[31]     The claimant sought state protection to no avail. This is consistent with the available country conditions evidence.

[32]     Several items of the NDP9 mention the inability of the police in Haiti to protect the people of Haiti. Corruption and impunity for crimes are described as being widespread in Haiti. One document references the French OFPRA report, which explains that: “The capabilities of the Haitian National Police are not sufficient, both in terms of the number of police officers who are mainly present in the capital, and in terms of the equipment available to the police, noting in particular the lack of fuel, cars and computers. » In the same vein, it states that “Haiti’s National Police has a limited response capacity and lacks the resources to complete investigations, which compromises the deterrent effect on criminals who act without fear of the police authorities.” The document also indicates that the police are notable to protect themselves from criminals in Haiti. When the panel considers the entirety of the evidence on country conditions in Haiti, it finds that the claimant could not avail himself of adequate state protection in Haiti. The presumption of state protection has been rebutted.

Internal Flight Alternative (IFA):

[33]     The IFAs of [XXX] were suggested at the hearing. Having heard the evidence the panel finds that the analysis of IFA fails on the first prong. The panel finds that the people who have targeted the claimant could locate the claimant in an IFA. As seen in the section on risk under section 97(1), the agents of harm have demonstrated their motivation to pursue the claimant outside of [XXX]. They have also demonstrated their motivation to pursue him over time. As seen in the section above on the objective basis, the social and neighbourhood networks in Haiti would make it possible for the agents of harm to locate him in the proposed IFAs. The panel finds that, on a balance of probabilities, the claimant faces a risk to life or risk of cruel and unusual treatment or punishment in the proposed IFA – s. 97(1) and throughout Haiti, which is a geographically small country.

CONCLUSION

[34]     Having considered all of the evidence, the panel determines that, on a balance of probabilities, the claimant would face a risk to life or a risk of cruel and unusual treatment or punishment in Haiti.

[35]     The claimant is credible.

[36]     The panel concludes that the claimant is a person in need of protection and the panel therefore accepts their claim.

(signed)           Miryam Molgat

October 19, 2020

[1] Leon, Johnny Edgar Orellana v. M.C.I. (F.C.T.D., no IMM-3520-94), Jerome, September 19, 1995; Calero, Fernando Alejandro (Alejandeo) v ME.I. (F.C.T.D., no. IMM-3396-93), Wetston, August 8, 1994; and Vargas, Maria CecillaGiraldo v. ME.I. (F.C.T.D., no T-1301-92), Wetston, Mary 25, 1994.
[2] Marincas, Dan v ME.I. (F.C.T.D., no IMM-5737-93), Tremblay-Lamer, August 23, 1994; De Arce v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 74 (F.C.T.D.); and Xheko, Aida Siri v. M.C.I. (F.C.T.D., no IMM-4281-97), Gibson, August 28, 1998.
3 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.).
4 Shahamati, Hasan v. Minister of Employment and Immigration (F.C.A., no. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994
5 Solemn Declaration by C. Cabot, Exhibit 1
6 National Documentation Package, Haiti, 1 September 2020, sections 2 and 7.
7 National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.
8 National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.
9 National Documentation Package, Haiti, 1 September 2020, tab 2.1: Haiti. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.National Documentation Package, Haiti, 1 September 2020, tab 7.8: Major criminal groups, including their areas of operation, their structure and their activities; state response (2016-May 2019). Immigration and Refugee Board of Canada. 6 June 2019. HTI106293.FE.

Categories
All Countries Haiti

2020 RLLR 15

Citation: 2020 RLLR 15
Tribunal: Refugee Protection Division
Date of Decision: January 14, 2020
Panel: R. Riley
Counsel for the Claimant(s): Lisa Winter-Card
Country: Haiti
RPD Number: TB8-23375
Associated RPD Number(s): TB8-23445, TB8-23446, TB8-23447
ATIP Number: A-2021-00540
ATIP Pages: 000103-0000106

DECISION

[1]       MEMBER: These reasons will stand as the decision in this case. The reasons given orally today will be rendered into writing and the claimants and their lawyer will receive the written version, within a matter of weeks.

Allegations

[2]       The claimants allege that they are citizens of Haiti.

[3]       The principal claimant, [XXX], was appointed designated representative for the minor claimants.

[4]       The principal claimant indicated that she was married to the father of the children, in 2004 and that serious abuse, including sexual assaults, began against her around 2007. The abuse continued up to her divorce in 2018, at which time the principal claimant and the minor claimants left Haiti.

[5]       The principal claimant has received indications that her former husband remains angry with her and intends to pursue her and cause harm to her.

[6]       The claimants state that the government of Haiti will not protect them and that there is no safe place for them anywhere in Haiti.

Identity

[7]       The claimants have provided their passports and their Haitian birth certificates. The panel is satisfied as to the Haitian citizenship and the persona) identities of the claimants.

Credibility

[8]       The principal claimant’ s testimony was straightforward and spontaneous and there was no inconsistency or contradictions between her Basis of Claim Form and her oral testimony.

[9]       The panel accepts the evidence of the principal claimant on the core issue of continued fear of domestic violence if she were to return to Haiti. The panel finds the evidence of the principal claimant to be credible and trustworthy.

Documentary Evidence

[10]     The evidence of the principal claimant was consistent with the objective evidence found in the National Documentation Package with respect to Haiti’s treatment of the victims of domestic violence.

[11]     So, for instance, at Item 2.1 of the NDP, which is the annual report of the U.S. Department of State, it’s indicated that domestic violence in Haiti, domestic violence against women in Haiti, is commonplace. It also states that, victims of sexual violence face major obstacles in seeking justice.

[12]     At Item 5.12 of the NDP, we have a report from the French office that deals with refugees. It quotes the Haitian Prime Minister, in 2015, as saying, in respect of a rape accusation against a prominent politician, that:

“Rape is a private matter and of interest only to the complainant.”

It goes on to say that:

“Domestic violence is commonplace, tolerated and hidden from view.”

[13]     Item 5.13 of the NDP is a report on domestic violence in Haiti. The report reminds us that violence based on gender is recognized throughout the world as a violation of a fundamental human right and at page 9 of that report, it indicates that only 11% of Haitian women involved in domestic violence had tried to contact police.

[14]     This is an illustration of the lack of confidence that Haitian women have in the police of Haiti to give them any kind of help.

[15]     The claimant was not in a position to provide any medical evidence as to abuse but the panel noted the e-mail from the claimant’s former husband, found at page 5 of Exhibit 5. The panel had reference to the translation found at page 4 of that exhibit and the panel notes that the ex-husband admits to sexual assault of his then wife and he provides the following justification:

“It was better for him to sexually assault his spouse than to cheat on her.”

[16]     The panel also notes the testimonials from persons in Haiti who knew both the husband and the wife and it’ s obvious that the former husband was very quick to anger when one reads pages 7 and 9 of Exhibit 5.

[17]     So, all in all, there’s a harmony which reflects the allegations found in the Basis of Claim Form and the documentary evidence. The documentary evidence supports the allegations made by the principal claimant and reinforces her credibility.

State Protection

[18]     Given the documentary evidence on domestic violence in Haiti, the panel is satisfied that it would not be reasonable for the principal claimant to ask the State of Haiti for protection.

Internal Flight Alternative

[19]     The principal claimant testified that, no matter where she settled in Haiti, her former husband still had the intention to pursue her and cause her harm, no matter where she would be in Haiti.

[20]     The panel is satisfied that the documentary evidence indicates that the government of Haiti has no interest in protecting its female citizens, throughout of all of its territory.

[21]     The panel concludes that it would not be reasonable for the principal claimant to seek an internal flight alternative, in Haiti.

Conclusion

[22]     Having considered all of the evidence, the panel determines that the claimant, [XXX], has satisfied her burden of establishing that there is a serious possibility of persecution on a Convention ground if she were to return to Haiti.

[23]     The panel, therefore, concludes that the claimant, [XXX], is a Convention refugee and the Division accepts her claim.

[24]     With respect to the minor children, the principal claimant was honest in admitting that they had not faced violence before and that the likelihood of abuse at the hands of their father was too remote for them to seriously claim protection in Canada.

[25]     No evidence was advanced to suggest that the minor claimants are at risk for a Convention reason, if they return to Haiti.

[26]     The panel is confident that the principal claimant will apply for permanent residence and include her children in such application

[27]     The minor claimants, [XXX], [XXX] and [XXX], are not Convention refugees and are not persons in need of protection and the Division rejects their claims.

[28]     I wish you the very best in the future, Madame.

 ——— REASONS CONCLUDED ———-

Categories
All Countries Haiti

2019 RLLR 34

Citation: 2019 RLLR 34
Tribunal: Refugee Protection Division
Date of Decision: December 5, 2019
Panel: Elise Escaravage
Country: Haiti
RPD Number: VB8-03742
ATIP Number: A-2021-01124
ATIP Pages: 000191-000195

— PROCEEDINGS COMMENCED

[1]       PRESIDING MEMBER: Reasons for decision.

INTRODUCTION

[2]       I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. These are the reasons for the decision in the claim of Madam [XXX] a citizen of Haiti who is claiming refugee protection pursuant to Sections 96 and 97 of the Immigration Protection Act.

[3]       In rendering my reasons I have considered and applied the Chairperson’s Guidelines on women refugee claimants fearing gender related persecution throughout the hearing and in my decision as this is a case of domestic violence.

ALLEGATIONS

[4]       The Claimant detailed her allegations in her Basis of Claim form which can be summarized as follows. The Claimant is 69 years old from Haiti fearing domestic violence at the hand of her ex-partner [XXX] (phonetic) who is 15 younger than her. The Claimant endured close to 10 years of domestic violence which included armed death threats, even after she left him in [XXX] 2013.

DETERMINATION

[5]       I find that you are a Convention refugee as you have established a serious possibility of persecution on account of your membership in a particular social group as a woman facing domestic violence.

ANALYSIS

IDENTITY

[6]       I find that your identity as a national of Haiti has been established by your testimony and the supporting documentation in file including a certified copy of your passport at Exhibit 1.

CREDIBILITY

[7]       I find you to be a credible witness and therefore believe what you said in support of your claim. You testified in a straightforward manner and there were no relevant inconsistencies between your testimony and the other evidence before me which have not been satisfactorily explained.

NEXUS

[8]       Given your history of domestic violence I find that your fear of persecution in Haiti has a nexus to the Convention ground of membership in a particular social group as a woman facing gender based persecution. For this reason your claim will be assessed under Section 96 of The Act.

WELL-FOUNDED FEAR OF GENDER BASED PERSECUTION

[9]       I find that you have established an objectively well-founded fear of gender based persecution for the reasons that will follow. You testified that you entered a romantic relationship with a friend and former customer of yours in 2009, named [XXX] (phonetic). Your house was affected by the 2010 earthquake to the point where you had to move out. You moved in with him. At the beginning he was not aggressive to you as you helped him financially through the small business you had where you sold [XXX]. However when you started telling him that you no longer had money to give him he became violent to you. He assaulted you physically to the point of breaking your left arm. You submitted a photograph of yourself with a cast at Exhibit 4 and brought the original picture at the hearing.

[10]     It was difficult for you to talk about the domestic violence as you were so embarrassed and ashamed that you were dating a younger man which is stigmatized in Haiti.  As such you kept the violence to yourself and did not talk about it with your children until it went too far. In [XXX] 2013 you decided to finally leave [XXX] (phonetic) thinking that your struggles would be over. You moved in with your niece, [XXX] (phonetic) who submitted a support letter to that effect at Exhibit 4.

[11]     Over a year later in [XXX] 2014 [XXX] (phonetic) found you at work at the [XXX] (phonetic). He assaulted you physically once more, hitting you in the face and breaking your teeth. You submitted documentary evidence of your consultation at the dentist you had following the assault at Exhibit 4.

[12]     [XXX] (phonetic) continued to threaten, harass and assault you up until [XXX] 2017 even if you had separated in 2013. He attacked you once when you were at the [XXX] on your way home and left you lying in the streets.

[13]     In [XXX] 2017 you received the last threat from him. He showed up at your house when your daughter [XXX] (phonetic) was there and squeezed your hand while threatening you. [XXX] (phonetic) witnessed the assault and she reported it to the police. Given the numerous instances of gender based violence you suffered at the hands of [XXX] (phonetic), despite the fact that you separated in 2013, you are afraid that he may locate and harm you if you return to Haiti.

[14]     Objective evidence included in the National Documentation Package overwhelmingly points to alarming rates of domestic violence throughout Haiti and inadequate protection available to victims of domestic abuse. Items 5.13, 5.3 and 2.4 are examples of such.

[15]     For instance a research from the IRB’s research unit states that “sources report that domestic or family violence is widespread in Haiti. According to a Haiti mission report in 2017 domestic violence is a real societal problem. It is recorded in all social strata and is particularly prevalent in the impoverished areas of Port aux Prince as well as in remote rural areas.” Item 5.3.

[16]     The same report indicates that domestic violence is tolerated and considered normal by society and that violence against women and girls is trivialized in Haitian society. Human Rights Watch emphasises that Haiti has no specific legislation against domestic violence, sexual harassment or other forms of violence targeted at women and girls.

[17]     Based on all of the evidence before me, including the sources cited in your testimony, I find that you have established a serious possibility of gender based persecution in Haiti.

STATE PROTECTION

[18]     I find that there is clear and convincing evidence before me that the state is unable or unwilling to provide you with adequate protection. You testified that you went to the police station in order to file a police complaint for domestic violence in 2016. The police response was humiliating as they referred to you as a desraee (phonetic) which in Creole means a woman without morals. They told you that you were simply an old woman looking for attention from younger men and that they had bigger issues to deal with than your family affairs.

[19]     The Immigration and Refugee Board’s research on violence against women at Item 5.3 corroborates the experience you described and lack of adequate state protection for women like you who are victims of gender based violence such as domestic violence. The sources point to a lack of means and education of police as well as their lack of sensitivity. Furthermore it describes the number of obstacles in seeking justice for women victims of violence in Haiti. Notably corruption and disfunction of the legal system, impunity of aggressors and victims’ lack of confidence in the legal system.

[20]     As an elderly woman with no education I find that you are particularly vulnerable and may face additional barriers in seeking state protection. For these reasons I find that the presumption of state protection has been rebutted in your case.

INTERNAL FLIGHT ALTERNATIVE

[21]     Based on the totality of the evidence before me I find that it is not objectively reasonable in all of the circumstances, including those particular to you, for you to seek refuge in Haiti for the following reasons.

[22]     You are currently 69 years old and will tum 70 years old by the end of this month. You do not have access to pension in Haiti nor to health care. You have never been to school, in fact not even a day so you cannot read or write. Even through you have proven to be quite resourceful in raising three of your four children by yourself, by running a small [XXX] business it would be unreasonable to expect you to relocate to another city within Haiti considering your personal circumstances such as your age, your lack of access to employment, your lack of access to pension or any revenue and by your limited capacity to seek housing as an elderly single woman. While I note that you have three children living in Port aux Prince at the moment, I do not find it reasonable for you to relocate there in light of your personal circumstances. I find — for this reason I find that it would be objectively unreasonable to expect you to relocate anywhere in Haiti. As the internal flight alternative test fails on the second prong of the test I find that there is no viable internal flight alternative available to you in Haiti.

CONCLUSION

[23]     Based on the analysis above I conclude that you are a Convention refugee, accordingly I accept your claim.

— PROCEEDINGS CONCLUDED

Categories
All Countries Haiti

2019 RLLR 20

Citation: 2019 RLLR 20
Tribunal: Refugee Protection Division
Date of Decision: August 27, 2019
Panel: R. Riley
Counsel for the Claimant(s): Tina Hlimi  
Country: Haiti
RPD Number: TB8-20008
ATIP Number: A-2021-01124
ATIP Pages: 000137-000140

DECISION

[1]       MEMBER: These are the reasons in relation to this claim. The reasons given orally today will be rendered into writing and the transcript of the reasons will be sent to the claimant and his lawyer within a matter of weeks.

ALLEGATIONS:

[2]       The claimant alleges that he is a citizen of Haiti. The claimant says that he is targeted by armed bandits associated with [XXX] the Mayor of [XXX]. He states that he was attacked in [XXX] 2018. He was told by the attacker to stop inciting the youth against the mayor of [XXX] and he was also accused of being a member of the opposition.

[3]       He left Haiti in [XXX] of 2018, spent approximately six weeks in the United States and came to Canada to claim refugee protection. The claimant alleges that the Government of Haiti will not protect him and that there is no safe place for him anywhere in Haiti.

ANALYSIS:

IDENTITY:

[4]       The claimant provided his Haitian passport, a certified copy of which is found in Exhibit 1. The claimant also provided his birth certificate, a copy of which is found at page 7 at Exhibit 4 and his school records, copies of which are found at pages 2 to 6 of Exhibit 4.

[5]       The panel is satisfied as to the Haitian citizenship and the identity of this claimant.

CREDIBILITY:

[6]       The testimony of the claimant was straightforward and reasonably consistent. The claimant may have exaggerated the role of the person he feared having promoted the deputy mayor to the position of Mayor, nevertheless this was a minor matter, overall the panel detected no serious contradictions or omissions.

[7]       The claimant’s testimony that he promoted worthy deeds and thoughts in Haiti is worn out by music video he presented as well as his testimony. The claimant states that he and other students volunteered to clean up streets after it rained in [XXX]. The claimant was involved in donating books to an orphanage.

[8]       The music video showed the claimant performing a song with numerous images of young persons on the street and showing the classrooms where those young persons should be studying.

[9]       The video also demonstrated the claimant’s commitment to encouraging the youth of Haiti to go to school. All of these good deeds appear on the surface to be non-controversial.

[10]     The reality is that the claimant’s good intentions and his declarations were interpreted by the deputy mayor of [XXX] as being implicitly critical of the city administration. By engaging in the actions he did, the claimant was seen to be stating that the city administration was not up to doing it’s job.

[11]     This is clear case of attribution of political opinions where perhaps none were originally intended.

[12]     The panel accepts the claimant’s testimony that he could continue to write and perform songs about the social conditions in Haiti and that those in authority in Haiti could easily interpret such declarations as statements critical of those politicians who are not doing a good job for the benefit of other Haitians if he were to return to Haiti.

[13]     On a balance of probabilities, the testimony of the claimant is credible and trustworthy. Linked to Convention ground, the claimant’s declarations and good deeds were an indirect expression of a political opinion, those good deeds are illustrated by the photos found at Exhibit 5 of the evidence.

[14]     The claimant’s declarations and deeds were certainly interpreted as political opinions which were encountered to the opinions of those in power in [XXX].

[15]     The peaceful expression of that political opinion caused the claimant actual and prospective harm. Violence was committed against him, his life was threatened.

[16]     The panel is satisfied that this type of claim falls within the definition of a Convention refugee when he was under threat of persecution due to political opinion.

DOCUMENTARY EVIDENCE:

[17]     The panel has paid attention to the Medical Report found at pages 16 to 18 of Exhibit 4 as well as the police report found at page 19 of Exhibit 4. These documents are supportive of the claimant’s declaration that he was assaulted in late [XXX] 2018.

[18]     The claimant also provided support letters from various witnesses in Haiti, those letters are found at pages 9 to 11 of Exhibit 4 and they tend to corroborate the allegations of the claim, in short the documentary evidence supports the credibility of this claim.

STATE PROTECTION:

[19]     The agents of persecution belong to or are affiliated with a person in power namely the deputy mayor of the city of [XXX], the deputy mayor appears to have at her disposal a group of thugs who will engage in violent acts to punish those who are against her or who are perceived to be against her.

[20]     The documentary evidence indicates that the police in Haiti are known to be corruptible and not to be very good at protecting citizens from those in power.

[21]     The panel here is referring to the National Documentation Package. This claimant has no reasonable expectation of protection from persons in authority who are threatening him. It would not be reasonable for this claimant to seek State protection under these circumstances.

INTERNAL FLIGHT ALTERNATIVE:

[22]     The National Documentation Package also indicates that persons who are fleeing persecution within Haiti can easily be traced.

[23]     There is no satisfactory evidence that there would be, on a balance of probabilities, a safe place of refugee for this claimant within Haiti. The panel concludes that it would not be reasonable for this claimant to seek an internal flight alternative.

CONCLUSION:

[24]     Having considered all of the evidence, the panel determines that the claimant has discharged his burden of establishing that there is serious possibility of persecution if he were to return to Haiti. The panel therefore concludes that the claimant, [XXX], is a Convention refugee by reason of his perceived political opinion and the Division accepts his claim and I wish you the very best in future, sir.

[25]     CLAIMANT: Thank you.

[26]     MEMBER: Thank you counsel for you assistance.

———- REASONS CONCLUDED ———-

Categories
All Countries Haiti

2019 RLLR 5

Citation: 2019 RLLR 5
Tribunal: Refugee Protection Division
Date of Decision: October 17, 2019
Panel: Ethan McMonagle
Country: Haiti
RPD Number: MB7-21566
ATIP Number: A-2020-01124
ATIP Pages: 000043-000045

[1]       These are the reasons in the decision in the claim for refugee protection made by [XXX], who claims to be a citizen of Haiti, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. In rendering my reasons, I’ve considered the Chairperson’s guidelines on proceedings before the IRB involving sexual orientation and gender identity and expression.

ALLEGATIONS

[2]       You allege that you are a bisexual man from Haiti. You and your family left Haiti for the Bahamas in 1996 and remained there, until approximately 2010 when you were granted temporary protected status in the United States. Not having permanent status in the United States and fearing a return to Haiti, you claimed refugee protection in Canada at Lacolle, Québec, on or about October 25th, 2017.

DETERMINATION

[3]       I find that you are a “Convention refugee” as you have established a serious possibility of persecution on account of your membership in a particular social group of LGBT persons.

ANALYSIS

[4]       The determinative issue in this matter is credibility.

IDENTITY

[5]       I find that your identity as a national of Haiti is established by your testimony and the supporting documentation filed, which includes your Haitian passport.

CREDIBILITY

[6]       I find you to be a credible witness and I generally believe what you have alleged in support of your claim. You testified in a straightforward manner, and there were no relevant inconsistencies in your testimony, or contradictions between your testimony and the other evidence before me, which caused me concern or which were not adequately addressed. Your file is reasonably well­ documented, including a supporting letter and an affidavit, and media excerpts and correspondence with an American lawyer opining on your status in the United States. On the basis of your supporting documentation and your credible testimony, I find, on a balance of probabilities, that you are bisexual as you allege to be.

STATUS IN THE UNITED STATES OF AMERICA

[7]       Regarding your status in the United States, you allege that you only had temporary protected status which was set to expire. Further, now, since you’ve been away from the United States for approximately two years, you are not entitled to re-engage that status. I also note that in 2012, you made an application through your elderly father for permanent residence, but as of the date of this hearing, there is no evidence to suggest that you’ve been granted any status. On the basis of your testimony, the documentary evidence, and Counsel’s submissions and getting through some of that evidence, I am satisfied that you do not have any durable status in the United States.

OBJECTIVE BASIS

[8]       With regard to Haiti, looking at the documentary evidence in the National Documentation Package, I note a few items. 2.1 notes that local attitudes remain hostile toward LGBT individuals. Some politicians and leaders of organizations actively oppose the social integration of LGBT persons in discussions of their rights. Amnesty International notes that the Haitian Senate supported bills which discriminated against LGBT people, and in fact, it approved a law making same-sex marriage and public support or advocacy for homosexuality illegal. Similarly, Human Rights Watch notes that in 2017, the Haitian Senate passed two anti-LGBT bills which were under consideration as of November 2018. One of which calls for a ban on gay marriage as well as any public support or advocacy for LGBT rights. Should the bill be… or should this ban become law, the parties and co­ parties and accomplices of any same-sex marriage could be punished by three years in prison and a fine of approximately 8,000 U.S. dollars. On the basis of the documentary evidence and your testimony, and your particular situation, I find that you face a serious possibility of persecution in Haiti.

STATE PROTECTION AND INTERNAL FLIGHT ALTERNATIVE

[9]       And, given the foregoing reference to country conditions in Haiti, and the fact that I find you face a serious possibility of persecution throughout that country, in your particular case, as the agent of persecution could be both State and non-State actors, I find that neither adequate State protection nor a viable internal flight alternative exists in Haiti for you.

CONCLUSION

[10]     Based on the foregoing, I conclude that you are a “Convention refugee”, and I accept your claim. Welcome to Canada.

Categories
All Countries Haiti

2019 RLLR 4

Citation: 2019 RLLR 4
Tribunal: Refugee Protection Division
Date of Decision: July 4, 2019
Panel: Nicole Ginsberg
Counsel for the claimant(s): Hubert Guay
Country: Haiti
RPD Number: MB7-18975
Associated RPD Numbers: MB7-19054
ATIP Number: A-2020-01124
ATIP Pages: 000033-000042

REASONS FOR DECISION

INTRODUCTION

[1]       The principal claimant, [XXX], and her son, the minor claimant, [XXX], request protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       The principal claimant was appointed as the designated representative for the minor claimant. The claimant submitted into evidence a letter from the father of the minor claimant consenting to the minor claimant being in Canada with the principal claimant.2

[3]       The hearing was adjourned for the receipt of certain documents, which the claimant’s counsel submitted following the hearing.3

[4]       In its decision, the panel has taken into account Chairperson’s Guidelines number 4 on Women Refugee Claimants Fearing Gender-Related Persecution.4

ALLEGATIONS

[5]       The allegations are contained in the claimants’ Basis of Claim (BOC) forms,5 and are summarized as follows:

[6]       The principal claimant is a citizen of Haiti. The minor claimant is a citizen of the United States.

[7]       The principal claimant alleges that her father, [XXX], is a [XXX], [XXX] and [XXX] activist in Haiti. In particular, he works for the [XXX]-based organization, [XXX], providing [XXX] in Haiti, in order to increase the public’s engagement on [XXX] issues and improve conditions for people living in Haiti.

[8]       The principal claimant alleges that, as a result of her father’s work, she and her siblings and her father were subjected to intimidation and violence by those opposed to his work.

[9]       In [XXX] 2010, two bandits broke into the principal claimant’s home and beat and sexually assaulted her. The bandits told her that the attack was intended as a message to her father to stop doing his [XXX] work. She did not report the incident to police, and fled to the United States within days of the attack.

[10]     The principal claimant lived in the United States, where for a period of time she had temporary protected status. The minor claimant was born in the United States in 2015. His father remains in the United States. On [XXX], 2017, the claimants came to Canada and made their refugee claims.

[11]     The principal claimant has another child, born in the United States in 2011, who continues to live in the United States with his father and is not included in this claim.

DETERMINATION

[12]     The panel has considered all of the evidence and finds that the principal claimant has established that she faces a serious possibility of persecution in Haiti on the basis of her membership in a particular social group, as a woman fearing gender-related violence in Haiti.

[13]     The panel finds that the minor claimant has not established that he faces a serious possibility of persecution in the United States or that, on a balance of probabilities, he faces a danger of torture or a risk to life or a risk of cruel and unusual punishment in the United States.

ANALYSIS

Identity

[14]     The claimants’ identities are established on a balance of probabilities by their respective passports, certified copies of which were filed in evidence.6

United States-Born Minor Claimant

[15]     The principal claimant did not allege any particular fear for her United States-born son in the United States. She testified that she has no one to care for her son if he was to stay in the United States without her. While the panel acknowledges that family separation is not often a desirable situation, the panel also notes that family separation is not contemplated by either section 96 or subsection 97(1) of the IRPA.7

[16]     The panel finds the claimants have not established that the minor claimant faces a serious possibility of persecution in the United States on a Convention ground. The panel also finds that the claimants have not established, on a balance of probabilities, that the minor claimant faces a danger of torture or a risk to life, or a risk of cruel and unusual treatment or punishment, if he was to return to the United States. As such, he is not a Convention refugee under section 96 or a person in need of protection under subsection 97(1) of the IRPA.

[17]     Accordingly, the analysis below is in respect of the principal claimant only.

Nexus

[18]     For the principal claimant, the allegations establish a nexus to the Convention ground of membership in the particular social group of women fearing gender-related persecution. Thus, her claim has been analyzed pursuant to section 96 of the IRPA.

Credibility

[19]     The panel finds the principal claimant to be credible as to the key allegations of her claim. Her testimony was detailed, spontaneous and straightforward. She testified credibly with respect to her father’s [XXX] work in Haiti. Specifically, she explained that he is a vocal advocate for the improvement of the socio-economic and other living conditions of the people of Haiti, and is known to vocally criticize the government, no matter which party is in power, for its lack of attention to certain matters. She provided as an example her father’s criticism of the government’s response to the earthquake at the time she was living in Haiti. She also testified credibly about her father’s continued [XXX] work in Haiti, which she believes would continue to put her at risk of being targeted.

[20]     The principal claimant testified credibly with respect to her own experiences in Haiti as a direct result of her father’s work. In [XXX] 2010, after having helped her father with a [XXX] campaign, she was followed home from the market by unknown men. She also testified credibly with respect to the sexual assault she experienced in 2010, in which her aggressors explicitly instructed her to send a message to her father to cease his [XXX] work.

[21]     The principal claimant did not try to embellish or exaggerate her allegations during her testimony. She explained that she was not aware of many details about her father’s work because he did not talk about his work; she was a child when she lived in Haiti, and she moved in with her father only when she was thirteen years of age. Until that time, she had been living with her grandmother. In addition, she explained that her father did not elaborate on the threats he himself received as a result of his work, because he did not want to alarm his children. Nor is the principal claimant aware of details about threats he is receiving in Haiti to this day as a [XXX] advocate. She explained that she harbours resentment toward him for the dangers she faced, and is not particularly close with him as a result.

[22]     In addition, the principal claimant testified that she does not know precisely who her alleged agents of persecution are, just that they are people who are opposed to her father’s stance on [XXX] in Haiti. The panel finds her explanations in all of these matters to be reasonable, particularly considering her age when she left Haiti and the circumstances of the threats she faced, and finds that these matters do not detract from the principal claimant’s credibility generally.

[23]     Moreover, there were no relevant contradictions, inconsistencies or omissions between the principal claimant’s BOC, the adult claimants’ testimonies at the hearing, and the documentary evidence on file that were not reasonably explained.

[24]     In support of her claim, the principal claimant submitted an online article about her father and his [XXX] work in Haiti, for the organization, [XXX].8 In addition, the claimant submitted a statement from her father as to the difficulties faced by the principal claimant in Haiti as a result of his stance on [XXX].9

Objective Basis

[25]     The principal claimant’s allegations in so far as her father’s work as an activist in Haiti are supported by the objective documentary evidence concerning the dire security situation in Haiti and the prevalence of politically-motivated violence in  Haiti.10 The objective documentary evidence also discusses the importance of vengeance as a motivator for violence in Haiti, including politically-motivated violence and violence against activists.11 Moreover, the evidence  indicates that, “in cases of political revenge, if those seeking it are serious, if they lose track of someone, they attack the family.”12

[26]     The objective documentary evidence is corroborative of the risks and vulnerabilities facing women in Haiti, specifically those who are heads of households, absent a male protector. The principal claimant is a single mother, and would not have anyone to live with if she was to return to Haiti. Her father, who remains in Haiti, continues in his activism work. However, living with her father would not be a viable prospect as her connection to her father is the very reason for the violence she experienced in Haiti. As such, the panel finds that she does not, on a balance of probabilities, have a male protector in Haiti.

[27]     The documentary evidence indicates that violence against women, including sexual violence, is widespread, a chronic and systemic problem, and is part of a culture of discrimination.13 The documentary evidence also indicates that violence against women and girls has “steadily increased” since 2009.14 Women who head their own households without the presence of a male protector face particular obstacles as regards their security, and also face discrimination in employment and provision of housing.15

[28]     In consideration of the foregoing, the panel finds that the principal claimant has established, on a balance of probabilities, that her father was and continues to be a vocal [XXX] advocate in Haiti and that she experienced sexual violence in Haiti as a direct result of her father’s work. As such, the panel finds that the behavior of the principal claimant is consistent with a subjective fear in Haiti, and that her fear is objectively well-founded.

State Protection

[29]     The panel finds that the principal claimant has rebutted the presumption of state protection with clear and convincing evidence that the Haitian state would be unable or unwilling to provide her with adequate protection.

[30]     The principal claimant did not report her sexual assault to police in 2010. She was a teenager when it occurred, and she fled the country days later to join her mother who was living in the United States.

[31]     The objective documentary evidence refers to the ineffectiveness and corrupt nature of the police in Haiti, as well as the involvement of Haitian police in human rights violations.16 A Response to Information Request in evidence indicates that in its 2014 report on Haiti, Human Rights Watch stated that “the weak capacity of the Haitian National Police contributes to overall insecurity in the country.”17 This research document also indicates that the police force is “not yet able  to  protect  most  of  the  citizens.”18 The  research  also  indicates  that  there  is  inadequate protection for targets of acts of revenge in Haiti.19 Moreover, the objective documentary evidence points to a lack of protection for fundamental civil rights in the country, due to the weakness of the legal system, such that it is nearly impossible to call on judiciary channels due to corruption and impunity at all levels of the public administration in Haiti.20

[32]     Women who are the victims of gender-based violence in Haiti, face particular challenges in obtaining state protection. The objective documentary evidence indicates that women are generally reluctant to seek help from the police and to report sexual abuse due to factors such as fear of discrimination, retaliation, stigmatization, the inability of the government to effectively respond to complaints or allegations, and fear of abuse or discriminatory treatment at the hands of police in Haiti.21 Despite the fact that legislation was introduced to enhance protection for women facing gender-based violence, the evidence indicates that the government “lacks the capacity to eradicate violence and discrimination against women [and] girls”.22

[33]     Given the evidence, the panel finds, on a balance of probabilities, that if she were to seek it, adequate protection would not be provided to the principal claimant in Haiti. Furthermore, the jurisprudence is clear that the claimant is not required to risk her life seeking inadequate protection merely to demonstrate its ineffectiveness.23

Internal Flight Alternative (IFA)

[34]     The panel suggested Port de Paix and Cap Haiïtien as potential internal flight alternatives, but finds that the principal claimant does not have a viable IFA in either location.

[35]     The panel concludes that the alleged agents of persecution have the means and motivation to find and harm the principal claimant anywhere in Haiti. The principal claimant provided a credible explanation for the motivation of the bandits to harm her, in connection with her father’s work. Moreover, her father continues to live in Haiti and continues in his advocacy work. Furthermore, the panel has canvassed above the prevalence of politically-motivated violence in Haiti in the objective documentary evidence.

[36]     The claimant testified as to the particular risks to which she would be vulnerable anywhere in Haiti, as a woman, particularly a woman with two children and no male protector, as discussed above. The panel finds, on a balance of probabilities, that the principal claimant would not have the effective protection of a male figure if she were to return to Haiti, which enhances her risk of persecution or harm in the IFA locations, on the basis of her gender.

[37]     In addition, the panel points out the absence of state protection anywhere in Haiti, also discussed above.

[38]     Accordingly, the panel finds that the principal claimant has demonstrated, on a balance of probabilities, that the agents of persecution have the means and the motivation to harm her should she return to Haiti and establish herself in the IFA locations. As such, the panel finds that the possibility of an IFA fails on the first prong.

DECISION

[39]     After assessing all of the evidence, the panel concludes that if the principal claimant returned to Haiti she would face a serious possibility of persecution under section 96 of the IRPA, on the ground of her membership in the particular social group of women fearing gender-related violence in Haiti. Thus, the panel finds that the principal claimant, [XXX], is a Convention refugee. Accordingly, the panel accepts her claim.

[40]     The minor claimant, [XXX], has not established a serious possibility of persecution on a Convention ground under section 96 of the IRPA, or that, on a balance of probabilities, he would be personally subjected to a risk within the meaning of subsection 97(1) of the IRPA, in the United States. Accordingly, his claim is rejected.

(signed)           Nicole Ginsberg

1 July 4, 2019Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96, 97(1)(a) and 97(1)(b).
2 Document 4 – Exhibit D-2: Birth Certificate of [XXX], attaching letter from [XXX].
3 Document 6 – Letter from [XXX], attaching birth certificate of principal claimant.
4 Chairperson’s Guideline 4 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996
5 Document 2 – Basis of Claim (BOC) forms.
6 Document 1 – Package of Information from the referring Canada Border Services Agency (CBSA) / Immigration, Refugees and Citizenship Canada (IRCC).
7 Varga v. Canada, 2006 FCA 394, paras. 9-l0; X(Re), 2017 CanLII 142905 (CA IRB), para 46.
8 Document 4, Exhibit D-1: News article on [XXX]: https://[XXX]
9 Document 6 : Letter of XXXX XXXX.
10 Document 3 – NDP, Haiti, 29 March 2019, tab 7.1: Response to Information Request, HTI106116.FE, Immigration and Refugee Board of Canada, 19 June 2018. Document 3 – NDP, Haiti, 29 March 2019, tab 7.2: Haïli: La situation sécuritaire, France, Office français de protection des réfugiés et apatrides, 29 August 2016. Document 3 – NDP, Haiti, 29 March 2019, tab 7.4: Haiti, 2017 Crime and Safety Report, United States, Overseas Security Advisory Council, 26 April 2017. Document 3 – NDP, Haiti, 29 March 2019, tab 4.17: Haiti’s Unrepresentative Democracy: Exclusion and Discouragement in the November 20, 2016, Elections, National Lawyers Guild, International Association of Democratic Lawyers, February 2017.
11 Document 3 – NDP, Haiti, 29 March 2019, tab 7.6: Response to Information Request, HTI1 06117.FE, Immigration and Refugee Board of Canada, 3 July 2018.
12 Ibid.
13 Document 3 -NDP, Haiti, 29 March 2019, tab 5.3: Response to Information Request, HTI105161.FE. Immigration and Refugee Board of Canada, 15 December 2016. Document 3 – NDP, Haiti, 29 March 2019, tab 5.5: Against Their Will: Sexual and Gender Based Violence Against Young People in Haiti. Doctors Without Borders, July 2017. Document 3 – NDP, Haiti, 29 March 2019, tab 5.9: Violence against Women, Trafficking, Prostitution, and Exploitation by UN Peacekeepers, Bureau des Avocats Internationaux et al., 22 January 2016. Document 3 – NDP, Tab 5.4: Response to Information Request, HTI105995.FE, Immigration and Refugee Board of Canada, 17 October 2017.
14 Supra, note 13. NDP, Haiti, 29 March 2019, tab 5.3.
15 Supra, note 13, NDP, Haiti, 29 March 2019, tab 5.4.
16 Document 3 – NDP, Haiti, 29 March 2019, tab 10.2: Response to Information Request, HTI105163.FE, Immigration and Refugee Board of Canada, 12 June 2015.
17 Ibid.
18 Ibid.
19 Ibid.
20 Document 3 – NDP, Haiti, 29 March 2019, tab 4.6: Political Transformation, Transformation Index 2018 Country Report: Haiti, Bertelsmann Stiftung, 2018.
21 Document 3 – NDP, Haiti, 29 March 2019, tab 5.1: Haiti. Social Institutions and Gender Index 2014, Organisation for Economic Co-operation and Development.
22 Ibid.
23 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.

Categories
All Countries Haiti

2019 RLLR 3

Citation: 2019 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: September 10, 2019
Panel: Me Jean-Guy Jam
Counsel for the claimant(s): Patrizia Ruscio
Country: Haiti
RPD Number: MB7-18354
Associated RPD Numbers: N/A
ATIP Number: A-2020-01124
ATIP Pages: 000025-000032

REASONS FOR DECISION

INTRODUCTION

[1]       The claimant, [XXX], is a citizen of Haiti. He is claiming refugee protection under section 961 and subsection 97(1)2 of the Immigration and Refugee Protection Act (hereinafter IRPA).

ALLEGED FACTS

[2]       The claimant was born on [XXX], 1980, and is from [XXX]. His father has lived in the United States for several decades. On [XXX], 1993, one of the claimant’s neighbours was killed by armed criminals. On [XXX], 1993, the claimant was caught up in an altercation between protesters and police officers during a pro-Lavalas protest. On that day, when he was 12 years old, the claimant boarded a boat to the United States and on [XXX], he arrived there. Once in the United States, his father only registered him for school. Later, the claimant obtained “Temporary Protected Status” (hereinafter: TPS).

[3]       In 2014 and 2016, the claimant went to Haiti. In [XXX] 2016, the claimant went to see property that his father had purchased several years earlier, but the claimant discovered that the person who had sold his father the land had resold it to a third party.

[4]       When the claimant went to see the property, he was seen by the person who had sold it to his father, and that person thought the claimant was there to take the land back.

[5]       After that, the seller, not wanting to give the land back, hired two individuals to kill the claimant. However, this attempted murder failed because a conflict broke out between the two individuals. Having been informed of this, the claimant, fearing for his safety, quickly returned to the United States, where he continued to live under TPS.

[6]       After Donald Trump became president of the United States, the claimant received a notice from the American government3 on [XXX], 2017, that his TPS would be extended for six months and that he would then have to return to Haiti.

[7]       Accordingly, fearing that he would be deported, the claimant left the United States on [XXX], 2017, to come to Canada. He arrived that same day and claimed Canada’s protection.

[8]       These are, in essence, the facts alleged by the claimant in support of his refugee protection claim.

DETERMINATION

[9]       The claimant is not a “Convention refugee” under section 96 of the IRPA, but he is a “person in need of protection” under subsection 97(1) of the IRPA.

ANALYSIS

Identity

[10]     The panel is satisfied as to the claimant’s identity, which was established through the documentary evidence on the record, including a certified true copy of his passport, the original of which was seized by Immigration, Refugees and Citizenship Canada.4

Section 96 of the IRPA

[11]     Firstly, the panel must determine whether the claimant’s situation has a nexus to any of the five Convention grounds, since the claimant stated that he fears people he described as [translation] “criminals.”

[12]     In this regard, the Federal Court in Ward5 indicates that victims of crime [translation] “do not meet the criteria for establishing the existence of a particular social group.”

[13]     Consequently, the claimant’s refugee protection claim is rejected under section 96 of the IRPA.

Paragraph 97(1)(a) of the IRPA

[14]     The panel finds that the claimant has not satisfactorily established that the agent of persecution is the state, since the claimant never alleged a fear of his country’s authorities or the Haitian police, but rather of criminals.

[15]     Consequently, the panel must determine that the claimant’s refugee protection claim is rejected under paragraph 97(1)(a) of the IRPA.

Paragraph 97(1)(b) of the IRPA

[16]     Now, would the claimant be subjected “to a risk to their life or to a risk of cruel and unusual treatment or punishment”?

Credibility

[17]     With regard to the claimant’s credibility, having heard his testimony and analyzed all the evidence on the record, the panel is prepared to give him the benefit of the doubt with respect to the truthfulness of the facts he alleges in support of his refugee protection claim.

[18]     He responded spontaneously and without exaggeration to the questions put to him by his counsel and the panel. The panel noted no contradiction, implausibility or omission of important facts that would undermine the claimant’s overall credibility. This was despite the panel’s certain reservations regarding the explanations provided by the claimant when he was questioned as to why he had not claimed protection in Canada upon his arrival. However, the panel does not find this fatal in the claimant’s specific case given the overall credibility of his testimony.

[19]     With regard to the application of the definition of “person in need of protection,” there is every reason to believe that the claimant has discharged his burden of proof. In fact, the panel finds that, in his particular case, the claimant is right to fear for his life if he were to return to Haiti.

[20]     Moreover, in making this determination, the panel considered not only the claimant’s testimony and the evidence he filed in support of his refugee protection claim, but also the extensive documentary evidence from independent and reliable sources on the situation in Haiti.

[21]     In fact, the documentary evidence states:

In correspondence sent to the Research Directorate, an official from the National Human Rights Defense Network (Réseau national de défense des droits humains, RNDDH) [4] stated that acts of revenge are generally motivated by political rivalries, the settling of scores, or romantic relationships (RNDDH 8 June 2018). … According to the RNDDH, [translation] “acts of revenge can be targeted or indirect. The idea is to send a message” (RNDDH June 8 2018). Sources stated that those targeted by acts of revenge are either people who have done something wrong in the eyes of the assailant or those close to them (Défenseurs Plus 7 June 2018; Assistant Professor I June 201 8).6 [Emphasis added]

[22]     The documentary evidence also states:

OFPRA adds that [translation] “under these conditions, land ownership disputes are frequently being resolved with weapons, rather than being brought before a judge. An owner of a disputed property may turn to people who have weapons” (France 15 Sept. 2017, 27).7

State protection

[23]     The panel finds that the claimant, in his particular case, cannot expect to obtain the protection of the Haitian authorities. In fact, the extensive documentary evidence from independent and reliable sources states:

However, the RNDDH states that [translation] “the police system is overwhelmed by the insecurity” in the country (RNDDH 3 May 2019, para. 51). In the same vein, the Assistant Professor writes that the PNH “continues to struggle to protect the population from both organized and informal criminals,” and added that, since MINUSTAH’s departure, the PNH has been unable to fully assume its responsibilities (Assistant Professor 20 May 2019). According to the RNDDH, police officers themselves are targeted by criminals, noting that 15 police officers were killed between January and April 2019 (RNDDH 3 May 2019, paras. 2-4). According to the Assistant Professor, police officers do not take initiative in crime prevention and “rarely” conduct criminal investigations (Assistant Professor 20 May 2019). The same source adds that the police “do not feel they have the expertise to investigate crimes or interact with victims or criminals” (Assistant Professor 20 May 2019). In the same vein, the RNDDH representative stated that [translation] “[f]ew police operations are carried out. They are inconclusive. The individuals arrested are generally not involved in the crimes” (RNDDH 17 May 2019). The RNDDH report adds that [translation] “the rare efforts [made by the PNH] to arrest armed criminals mean that, in the majority of cases, the criminals are unconcerned about the courts” (RNDDH 3 May 2019, para. 51).8 [Emphasis added]

Internal flight alternative

[24]     When questioned about an internal flight alternative (IFA) in Jérémie, the claimant stated that it was not feasible, since nowhere in Haiti was safe, implying that he would be found by the person who had sold the land to his father.

[25]     That said, the panel considers that, in the claimant’s particular case, an IFA is not feasible. Moreover, the documentary evidence states the following:

The Chancellor stated that the main way of tracking victims down was “individual networks” (Chancellor 18 June 2018). According to The Assistant Professor, rumours are rife in Haiti and are an effective way of locating people because “Haitians tend to be geographically tied to a small area and so anyone outside of their [usual] circle will be quickly recognized” (Assistant Professor 1 June 201 8).9 [Emphasis added]

[26]     In addition, the same documentary evidence from reliable and trustworthy sources also states:

… The same source indicated that she had experienced this reality when she was trying to find former participants in a study while doing field research, asking neighbours where the former participants were was generally enough to locate them (Assistant Professor 1 June 2018).10

[27]     After analyzing all the evidence on the record, the panel is not satisfied, on a balance of probabilities, that the claimant would not be running a serious risk of persecution if he had to avail himself of an IFA in his country of origin. Moreover, the panel finds that the claimant’s particular situation is such that it would be unreasonable for him to seek refuge in another part of the country.

CONCLUSION

[28]     After analyzing the testimonial and documentary evidence, the panel determines that the claimant [XXX], is not a “Convention refugee” under section 96 of the IRPA, but is a “person in need of protection” under subsection 97(1) of the IRPA.

[29]     Consequently, the panel allows his refugee protection claim.

(signed)           Jean-Guy Jam

September 10, 2019

1 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
2 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article I of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
3 Document 5 – Exhibit C-3: Form I-797C, Notice of Action.
4 Document 1 – Information package provided by the Canada Border Services Agency and/or Immigration, Refugees and Citizenship Canada: Passport.
5  Canada (Attorney General) v. Ward, [1993] 2 SCR 689.
6  Document 3 – National Documentation Package on Haiti (NDP Haiti), June 28, 2019, Tab 7.6: Response to Information Request, HTI106117.FE, Immigration and Refugee Board of Canada, July 3, 2018.
7 Document 3 – NDP Haiti, Tab 7.1: Response to Information Request, HTI106116.FE, Immigration and Refugee Board of Canada, June 19, 2018.
8 Document 3 – NDP Haiti, Tab I 0.2: Response to Information Request, HTI 106306.FE, Immigration and Refugee Board of Canada, June 17, 2019.
9  Supra, footnote 6.
10 Idem.